“Dog bites man” is not news, as that’s what one expects a dog to do.  But dog comforts witness on the stand is another matter, even though that’s what one expects a dog to do as well.  The  New York Times reports of Rosie, described as “the first judicially approved courtroom dog in New York.”

Rosie sat at the feet of a 15-year-old witness while testifying, who alleged that she was raped and impregnated by her father.  A terrible crime, and a traumatic situation.  The teenager kept hugging Rosie throughout her testimony, and was comforted by the dog’s nuzzling.  

The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.

Testifying is an ordeal for any witness, and that’s what it’s supposed to be.  It’s a hot seat, a place where an accuser is tested under the crucible of cross-examination and confrontation.  While we may well have a soft spot for children (which is usually reflected in a gentler, more circumspect cross, as jurors are offended when it appears that a lawyer is bullying a child witness), their testimony can put a person in prison just as well as anyone else’s.  Indeed, the Salem Witch Trials were all about the word of children.  Children with wild imaginations and malevolent purposes.

It’s no surprise that a dog will bring comfort to a vulnerable witness, That’s one of the things dogs do.  To watch a lovable dog, “man’s best friend,” adorable, as attorneys for both sides conceded Rosie to be, lend her cuteness to the witness is to bolster the witness’ credibility and likability.  Essentially, the dog becomes an unsworn witness.

The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause .

Yet, this is exactly what the dog shouldn’t do.  While the impetus for allowing a dog into the courtroom is to bring a measure of comfort to a vulnerable witness so as not to add to the trauma endured, it is not to have the dog become a prop in the passion play.  But dogs being dogs, and jurors being people, it’s impossible for them not to notice how the dog’s devotion is given to the witness.  Even dog-haters are moved by this display.

And then there’s the problem of the dog doing its job too well.

At least once when the teenager hesitated in Judge Greller’s courtroom, the dog rose and seemed to push the girl gently with her nose. Mr. Tohom was convicted and sentenced to 25 years to life.

His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

The point of confrontation is to confront, to make the witness uncomfortable, to challenge their finely-honed direct testimony so that the narrative can be tested and, if false or mistaken, shown to be wrong so that an innocent person isn’t convicted.  Of course we feel sorry for the putative victim, though whether the person on the stand is a victim is often at the heart of the question. 

But we must feel similarly bad for the person convicted on erroneous testimony.  We should no more want a wrongful conviction than a traumatized child-witness, and when the comfort of a dog alleviates the normal stress of giving testimony, a significant part of the system is compromised.  Witnesses should feel stress. Witness words and demeanor under cross are critical to the determination of truthfulness and accuracy.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

And that, a funny line though it is, strikes at the heart of the problem.  In the courtroom, we can’t cross-examine the dog.

Until a person is convicted, he is not guilty of a crime, and the witnesses against him are not his victims.  Sure, our sense of fairness, rightness and empathy tells us that this a legalistic ideal, and pales in comparison to the trauma suffered by a child.  No one, least of all me, is immune to the feelings of a child.  But any trauma endured by a witness must be viewed through the prism of the purpose of a trial. 

The child can (and most assuredly will) be prepared for the trauma, and can be given therapy afterward to dissipate the discomfort of being challenged on the witness stand.  Life has trauma, some of which can’t be helped, but which can be addressed and comforted with appropriate care. 

We cannot, however, ignore the reality that darling children are sometimes wrong, and sometimes lie, when they give testimony.  The purpose of cross-examination is to ferret out such testimony, and anything that undermines the purpose of confrontation makes no sense in a courtroom.

As  wonderful as it may be to have a dog like Rosie sit at the feet of a young lady who endured the rape and impregnation of a sick and disgusting father, the next child-witness may be accusing her parent of being a witch in Salem.  We cannot presume that the child isn’t wrong, or isn’t lying, and that the real victim in the courtroom isn’t the defendant.

And no one has yet suggested that the defendant be allowed a cute, adorable, slobbering dog to sit at his feet, to lend his loving dog-eyes to the warmth of the accused, just in case he’s the person suffering trauma in that courtroom.